George Choto vs Republic (Criminal Appeal No. 449 of 2023) [2026] TZCA 116 (25 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: NDIKA. J.A.. FIKIRINL J.A. And ISMAIL J.A.^ CRIMINAL APPEAL NO. 449 OF 2023 GEORGE CHOTO.......................................................................APPELLANT VERSUS THE REPUBLIC......................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, at Musoma) (Komba, J.) dated the 9th day of November, 2022 in Criminal Appeal No. 84 of 2022 JUDGMENT OF THE COURT 12th & 25th February, 2026. FIKIRINL J.A.: Before the District Court of Bunda at Bunda, the appellant George Choto was convicted and sentenced to serve life imprisonment. The offence he was charged with was rape contrary to section 130 (1) (2) (b) and 131(3) of the Penal Code, [Cap. 16 R. E 2019]. It was alleged that on 15th March, 2021 at Hunyari Village within Bunda District in Mara Region, the appellant unlawfully had carnal knowledge of a girl aged 6 years old (the victim) or PW1, a name concealed to preserve her dignity. i

Appellant denied the charge levelled against him, thus the trial commenced. At the end the trial court found the appellant guilty of the offence and consequently he was convicted and sentenced to life imprisonment. The evidence which led to the appellant's conviction can be summarized as follows: that on 15th March, 2021 at about 4:00pm PW1 was sent by her mother to fetch water near the appellant's house. When she reached the place, the appellant invited her inside his house. She responded by going in. While in, the appellant asked her to put off her clothes but she refused. The appellant forcefully undressed her. He then entered his penis into the victim's vagina, PW1 felt pain and saw dirty like mucus oozing out. After he was done, the appellant ordered her to stand dressed up. She then went on with her errand of fetching water and went back to her home. Displeased with happened to her, the victim reported the matter to her mother (PW2), on her limping while crying. PW2 examined PW1 vagina and found it was reddish and discharged some dirty like mucus. Following, PW2's reporting to Village Executive Officer (VEO), the appellant was arrested and taken to police. PF3 was issued and the victim was taken to Nyamuswa health center where she was attended by Fatuma Hamadi (PW3). In her examination PW3

discovered PW1 had lost her hymen, had vagina discharge and slight bruises but she was not infected. In his defence the appellant informed the trial court that on material day he went about his daily activities up to 6.00 pm, when he went back to his house. A while later he was arrested and taken to Nyamuswa Police Station. Later on, he was taken to Bunda and on 18th March, 2021, he was arraigned before the court. He lamented denying raping the victim and that the trial court relied on circumstantial evidence to convict him as there were only two witnesses. The matter was based on sexual harassment and it was withdrawn on November 2021, and later on he was charged again with the same offence. The trial court found that the offence against the appellant was proved beyond reasonable doubt. It thus convicted and sentenced him as earlier stated. Aggrieved by the decision of the trial court, he appealed to the High Court complaining that section 127 (2) of the Evidence Act was not observed; that penetration was not proved as there was no laceration and overall the prosecution case was not proved to the hilt. 3

The 1s t appellate court in its re-evaluation of the evidence on record and was of the finding that the provision was complied with before PW1 testified, and that penetration was proved though PWl's evidence which was supported by that of PW2, PW3 and exhibits PI and P2. Through their evidence the prosecution proved all essential ingredients of rape as provided by the law. The appeal was entirely dismissed. Still dissatisfied, the appellant lodged a further appeal, raising the following paraphrased grounds: one, that Section 127(2) of the Evidence Act was not properly applied, two, that Exhibit PI was admitted without proper foundation, three, that penetration was not proved, four, that his alibi defence was disregarded, five, that Section 210(3) of the CPA was violated, as the trial magistrate failed to append a signature and six, that the prosecution did not prove its case beyond reasonable doubt. The final ground (seventh) was not considered, as it bore no relevance to the appeal. Before addressing the grounds of appeal, it is important to recall that this Court, as a second appellate court, exercises caution in disturbing concurrent findings of lower courts. Such findings will only be interfered with where they are based on a misapprehension of evidence

or a misapplication of legal principles. See Issa Lenatus Elias v. R, (Criminal Appeal No. 242 of 2023) [2025] TZCA 843 (7 August 2025; TANZLII). On ground one, the appellant argued that section 127(2), now section 135(2) of the Tanzania Evidence Act, Cap. 6 R.E. 2023 (Evidence Act), was not complied with, as the preliminary questions posed to PW1 were not recorded, thereby nullifying her testimony. In response, Ms. Choghoghwe submitted that PWl's evidence was properly received after she promised to tell the truth, as reflected on page 9 of the record of appeal. The law is clear, that every person is competent to testify unless incapable of understanding questions or providing rational answers due to age or mental condition (section 135(1) Evidence Act). Subsection (2) further allows a child of tender age to testify without oath or affirmation, provided they promise to tell the truth. While the record does not reflect the exact questions posed to PW1, the absence of verbatim recording does not invalidate her testimony. Although it is good practice for judicial officers to record such questions, the law does not mandate it. See: Jafari Majani v. R, (Criminal Appeal No. 402 of 2019) [2021] TZCA 466 (6 September 2021; TANZLII). This ground lacks merit. 5

The appellant challenged the admission of Exhibit PI (PWl's birth certificate), in his ground two, arguing that no proper foundation was laid. This point, raised for the first time on appeal, was countered by the learned Senior State Attorney, who maintained that PW2, the victim's mother and custodian of the document, properly identified it before tendering, and the appellant did not object. She cited DPP v. Mirzai Pirbakhshi @Hadji @ Ally Mirzai & 3 Others, (Criminal Appeal No. 493 of 2016) [2017] TZCA 1060 (21 November 2017; TANZLII), which clarified who may tender exhibits. The procedure for admitting documents was thoroughly outlined prior to DPP v. Mirzai Pirbakhshi @ Hadji @Ally Mirzai & 3 Others, (supra) in Robinson Mwanjisi & Three Others v. R [2003] T.L.R 218, that: (i) a witness must identify the document and its features; (ii) the adverse party must be given an opportunity to object; and (iii) the court must formally admit it and (iv) it must be read out loud to permit the adverse part to know the contents therein. In this case, PW2 merely stated it was PWl's birth certificate, without detailing unique features. However, the appellant did not object, and the document was read in court. Regrettably, he has not demonstrated prejudice arising from the omission. See: Daniel Kivati Monyalu v. R, 6

(Criminal Appeal No. 224 of 2019) [2021] TZCA 561 (7 September 2021; TANZLII). This objection is an afterthought and fails. The appellant in ground four, contended that his defence of alibi was disregarded. The record shows otherwise. The trial court considered and dismissed it as an afterthought, while the first appellate court also addressed it despite being raised contrary to section 200(1) of the Criminal Procedure Act, Cap. 20 R.E. 2023, which requires prior notice. A mere assertion of absence, unsupported by evidence, cannot displace credible prosecution testimony. This ground is without merit. Failure by the magistrate to append signatures after each witness's testimony was another ground raised. The learned Senior State Attorney addressing this fifth ground, refuted the claim, noting that the record clearly shows signatures were affixed. It is well established that judicial signatures preserve the authenticity of proceedings. In this case, the record confirms compliance. This ground fails. Ground seven, as intimated earlier on, is premised on a cautioned statement and attendance register, which were not part of the appellant's case hence irrelevant to his appeal. It is therefore misplaced and dismissed.

The two remaining grounds namely three and six, were addressed together by the learned Senior State Attorney, who divided them into two limbs: (i) whether the prosecution proved rape beyond reasonable doubt, and (ii) whether the appellant ought to have been charged with incest instead of rape. On the first limb, counsel submitted that the prosecution discharged its burden, establishing all essential ingredients of rape, which are penetration, age, and identity of the perpetrator. Through the testimonies of PW1, PW2, PW3, and exhibits PI (birth certificate) and P3 (PF3 medical report) the rape charges levelled against the appellant was proved. PWl's immediate naming of the appellant enhanced her credibility, consistent with the principle in Marwa Wangiti Mwita v. R [2002] T.L.R 39. Counsel further relied on Selemani Makumba v. R [2006] T.L.R, which underscores that the victim's testimony is the best evidence in sexual offences, once the trial court concluded the victim is credible and her account trustworthy. On a general note, the law requires proof beyond reasonable doubt in criminal cases, with the burden resting on the prosecution. The record demonstrates that PW1 testified the appellant undressed her and inserted his male organ into her private part. PW2 observed discharge 8

and redness in PWl's vagina, while PW3's medical examination confirmed hymenal rupture, bruises, and vaginal discharge. This evidence clearly established penetration. Section 130(4)(a) of the Penal Code, Cap. 16 R.E. 2023, provides that even slight penetration suffices to prove rape. PWl's consistent testimony, corroborated by early reporting to PW2 and medical findings, proved penetration. The victim's age was also established. PW2's testimony and Exhibit PI confirmed that PW1 was born on 8th February, 2015. See: Isaya Renatus v. R, Criminal Appeal No. 542 of 2015 [2016] TZCA 218 (29 April 2019; TANZLII). On the second limb, the appellant argued that he should have been charged with incest rather than rape. The learned Senior State Attorney dismissed this contention, noting that section 158(1) of the Penal Code applies only to sexual intercourse by a male person with a granddaughter, daughter, sister, or mother. Although PW1 was the appellant's niece, that relationship is not covered under the provision. For ease of reference, section 158(1) states: "A male person who has prohibited sexual intercourse with a female person ; who is to his knowledge his granddaughter, daughter, sister or mother, commits the offence o f incest..."

The appellant does not fall within the categories listed. Accordingly, his complaint is unfounded. He was properly charged with rape, and the prosecution proved the case against him beyond reasonable doubt. These grounds therefore fail. In light of the foregoing analysis, we find the appeal devoid of merit. It is hereby dismissed in its entirety. DATED at MUSOMA this 25th day of February, 2026. The Judgment delivered this 25th day of February, 2026 in the presence of appellant via video link from Musoma Prison and Jonas Kivuyo, learned State Attorney for the respondent and Mr. Shabani Kanyai, Court Clerk; is hereby certified as a true copy of the original. G. A. M. NDIKA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL 10